Henry, et al. v. The Dow Chemical Company

Level of Scrutiny Required for Class Certification

NCLC's Position

In this case, plaintiffs sought to certify a class action against Dow Chemical alleging the company damaged their property by releasing a potentially hazardous chemical into a nearby river. NCLC filed five times supporting Dow Chemical's position.

In its first brief, NCLC urged the Michigan Supreme Court to grant leave to appeal a decision on Michigan's recognition of medical monitoring claims. NCLC argued that allowing medical monitoring claims without proof of actual physical injury is a radical departure from 200 years of settled tort law and would foster widespread litigation with crippling liability, leaving almost no defendant safe from medical monitoring claims.

After the court granted the appeal, NCLC filed a second brief arguing that allowing a claim for medical monitoring absent present physical injury is poor public policy that will lead to a flood of litigation, clog access to the courts and deplete resources that would be better used to compensate the truly injured, instead of providing an undeserved windfall to healthy plaintiffs. The Michigan Supreme Court remanded the case, concluding that the trial court erred in denying Dow Chemical's motion for summary disposition regarding the plaintiffs’ medical monitoring claim.

On appeal to the Michigan Court of Appeals, NCLC filed a third brief arguing that inconsistent and lax certification standards encourage class action abuse. NCLC urged Michigan courts to look to the federal courts for guidance by conducting a “rigorous analysis” of the class action requirements before certifying a class. The appeals court affirmed the trial court's certification of the class.

NCLC's fourth brief urged the Michigan Supreme Court to again review the case. Upon granting review, NCLC filed a fifth brief urging the court to hold that a trial court must conduct a "rigorous analysis" of the class action factors before certifying a class, instead of merely accepting the statements in a plaintiff's pleading. NCLC argued that lax class action certification encourages unwarranted litigation, and places tremendous pressure on businesses to settle meritless claims.

Case Outcome

In a fractured set of five opinions, the Michigan Supreme Court concluded that the trial court had not properly certified the class and remanded the case for further consideration. Although the court decertified the class, the majority failed to require trial courts to conduct a "rigorous analysis" of the class action factors before certifying a class, instead of merely accepting the statements in a plaintiff's pleading.

Procedural History

Amicus brief in support of Dow Chemical’s application for leave to appeal filed 12/15/03. Leave to appeal granted 6/3/04. Amicus brief on the merits filed 8/3/04. Decided and remanded 7/13/05. Amicus brief filed with Michigan Court of Appeals 4/24/06. Decided 1/25/08. Amicus brief supporting Michigan Supreme Court review filed 6/27/08. Review granted 11/5/08. Amicus brief on the merits filed 2/17/09. Decided 7/31/09.

Case Documents